UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 17-4480


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

BOB LEE JONES,

                     Defendant - Appellant.



Appeal from the United States District Court for the Western District of North Carolina, at
Asheville. Max O. Cogburn, Jr., District Judge. (1:16-cr-00094-MOC-DLH-1)


Submitted: June 11, 2018                                          Decided: July 18, 2018


Before NIEMEYER, TRAXLER, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James P. McLoughlin, MOORE & VAN ALLEN, PLLC, Charlotte, North Carolina, for
Appellant. R. Andrew Murray, United States Attorney, Amy E. Ray, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       After a jury trial, Bob Lee Jones was convicted of being a felon in possession of a

firearm and ammunition in violation of 18 U.S.C. §§ 922(g), 924(a)(2) (2012). On appeal,

Jones contends that the district court erred by not allowing hearsay evidence of an

inculpatory statement made by a third party, and by not instructing the jury on involuntary

intoxication as an affirmative defense. He also contends that the evidence was insufficient

to sustain the conviction and that the court had an obligation to investigate sua sponte the

reasons for the all-white jury venire. We affirm.

                                                  I

       After a night of drinking at a local club in Asheville, North Carolina, Jones and

friends were in a nearby parking lot when shots were fired. Two Asheville police officers

were nearby in their patrol car and ran into the parking lot as people fled the scene. One

fleeing woman gave a brief description of the shooter to one of the officers. The officers

spotted Jones, who matched this description, near the back of the lot. The officers

approached Jones with their firearms drawn and saw an object that looked like a firearm in

Jones’ hand. The officers yelled at Jones to drop his weapon. Jones walked toward a wall

near the edge of the lot and dropped something, then turned, put his empty hands in the air,

and walked toward the officers. The officers forced Jones to the ground and handcuffed

him, and then retrieved the firearm, bullets, and spent shells. In the patrol car, Jones denied

shooting the firearm.

       Defense counsel for Jones presented a witness who testified that she saw another

person in the parking lot shoot the firearm and then throw it away. Out of the presence of

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the jury, Jones sought admission of hearsay through a man who managed the club where

Jones had been drinking prior to closing time. This witness testified that he was in front

of the club at closing time when a man came up to him and stated that he shot his pistol

into the air to break up a fight and then handed the pistol off. The district court refused to

allow the proffered testimony as to the third party’s statement.

       “[T]he Constitution guarantees criminal defendants a meaningful opportunity to

present a complete defense.” Holmes v. South. Carolina, 

, 324 (2006)

(internal quotation marks omitted). “This right includes, at a minimum, the right to put

before a jury evidence that might influence the determination of guilt.” United States v.

Lighty, 

, 358 (4th Cir. 2010) (alteration and internal quotation marks omitted).

But “a defendant’s right to present a defense is not absolute: criminal defendants do not

have a right to present evidence that the district court, in its discretion, deems irrelevant or

immaterial.” United States v. Malloy, 

, 177 (4th Cir. 2009). In presenting a

defense, the accused “must comply with established rules of procedure and evidence

designed to assure both fairness and reliability in the ascertainment of guilt and innocence.”

Chambers v. Mississippi, 

, 302 (1973). When a court is charged with deciding

whether to admit evidence of an alternate perpetrator, the court must “balance two

evidentiary values: the admission of relevant evidence probative of defendant’s guilt or

innocence under [Fed. R. Evid.] 401 with the exclusion of prejudicial, misleading and

confusing evidence under [Fed. R. Evid.] 403.” 

.

       Further, the district court did not abuse its discretion in excluding hearsay testimony

about the inculpatory statement. Jones was able to present his defense that someone else

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was responsible for the shooting in the parking lot. Moreover, the hearsay statement did

not exonerate Jones because he was charged with unlawful possession of the firearm, not

unlawful discharge.

       Nor was the hearsay admissible as a present sense impression under Fed. R. Evid.

803(1) or a statement against interest under Fed. R. Evid. 804(b)(3). There was simply not

enough evidence to show that the hearsay was uttered contemporaneously or substantially

contemporaneously to the event. See United States v. Parker, 

, 954 (7th Cir.

1991) (stating rationale for present sense impression exception to hearsay rule).

Furthermore, Jones failed to show that the declarant was unavailable, as is required to admit

a statement against interest when the declarant is not present. See United States v.

Alvarado, 

, 250 (4th Cir. 2016) (stating elements for admissibility of statement

against interest).

                                                 II

       We have reviewed the district court’s decision not to instruct the jury on the defense

of involuntary intoxication and conclude that there was no abuse of discretion. See United

States v. Savage, 

, 222 (4th Cir. 2018) (stating standard of review). Under the

circumstances of this case, the proposed instruction was incorrect and unsupported by the

evidence. United States v. Lespier, 

, 449 (4th Cir. 2013).

                                                 III

       In assessing whether the evidence is sufficient to support a conviction, we must

determine “whether there is substantial evidence in the record, when viewed in the light

most favorable to the government, to support the conviction.” United States v. Palacios,

                                             4


, 248 (4th Cir. 2012) (internal quotation marks omitted). “Substantial

evidence is evidence that a reasonable finder of fact could accept as adequate and sufficient

to support a conclusion of a defendant’s guilt beyond a reasonable doubt.” 

internal quotation marks omitted). Furthermore, “[d]eterminations of credibility are

within the sole province of the jury and are not susceptible to judicial review.” 

marks omitted). If evidence supports different, reasonable interpretations, the

jury decides which interpretation to believe. United States v. Murphy, 

, 148

(4th Cir. 1994). A defendant challenging the sufficiency of the evidence to support his

conviction bears a heavy burden, United States v. Robinson, 

, 268 (4th Cir.

2017), and “[r]eversal for insufficient evidence is reserved for the rare case where the

prosecution’s failure is clear.” United States v. Ashley, 

, 138 (4th Cir. 2010)

(internal quotation marks omitted).

       “To show a § 922(g)(1) violation, the government must prove three elements:

(i) that the defendant was a convicted felon at the time of the offense; (ii) that he voluntarily

and intentionally possessed a firearm; and (iii) that the firearm traveled in interstate

commerce at some point.” United States v. Adams, 

, 183 (4th Cir. 2016)

(internal quotation marks omitted). Jones stipulated that he was a convicted felon and that

the recovered firearm was manufactured outside North Carolina. The only disputed

element was whether Jones possessed the firearm. Possession can be actual, exclusive,

constructive, or joint. United States v. Gallimore, 

, 136-37 (4th Cir. 2001).

“Possession, whether actual or constructive, can be extremely brief: a minute of possession

is as much an offense as a year of possession.” United States v. Torres-Colon, 

26, 32 (1st Cir. 2015) (internal quotation marks omitted). Viewing the evidence in the light

most favorable to the government, we conclude that sufficient evidence supports the

conviction.

                                                   IV

       Finally, Jones contends the district court committed plain error by not sua sponte

investigating the all-white jury. Because Jones did not pursue and preserve this contention

in the district court, review is for plain error. United States v. Cohen, 

, 678

(4th Cir. 2018). To demonstrate plain error, Jones must show (1) error, (2) that was plain,

and (3) that affected his substantial rights. United States v. Olano, 

, 731-32

(1993). We will not exercise out discretion to recognize the error unless the “error seriously

affects the fairness, integrity[,] or public reputation of the judicial proceedings.” 

(internal quotation marks omitted). We have reviewed the record and find no plain error.

       Accordingly, we affirm the judgment of conviction.             We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.



                                                                                  AFFIRMED




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